How to prove the absence of intent to commit a crime?

Statistics from our state show that most crimes are committed intentionally. However, not every crime demonstrates the fact of premeditation in committing the crime. In this case, it is necessary to prove the fact of its presence or absence. It happens that investigators deliberately do not see obvious facts and only an experienced criminal lawyer can prove the absence of intent in committing a crime. However, let's look at the most important points.

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Intent and its types in criminal law

Intention is one of the types of forms of guilt, which also include negligence and innocence (incident).

It is the opposite of a careless crime; the detection of intent is understood as the awareness by the citizen committing a criminal act of the consequences of its commission and the presence of the will to commit it.

Depending on the psychological moment, direct and indirect

A crime is considered committed with direct intent if the person:

• is aware of the social danger of his actions (inaction),
• foresees the possibility and inevitability of their occurrence,
• wishes them to come.

This type of crime is typical mainly for material compounds, i.e. for those where the onset of consequences is necessary. And crimes with a formal composition are committed only with direct intent.

Probably the most common intentional crime is theft - the secret theft of property.

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An example of direct intent (with a deliberate form of guilt). The citizen wanted to live better and get rich, studied the structure, identified weak points in the technical strength of the shopping center, and the time when the security alarm was triggered. At night, he entered the store and stole mink coats from the Fur department. He subsequently sold the fur coats through his friends and spent the money on his own needs. The citizen understands the social danger of his action, he knows that it is impossible to steal, the right of ownership is enshrined in law and is protected. But the citizen makes a volitional decision - he commits theft (intentional action), desiring the occurrence of certain consequences - the transfer of “ownership rights” to him. This is intentional guilt.

An example of direct intent (inaction). A citizen, as a result of failure to comply with the speed limit of a car in winter, commits a traffic accident - a collision with another car in which there is a driver and a passenger. The victims' car overturned, the engine stalled and the driver and passenger were trapped in it.

The culprit of the accident disappeared from the scene of the accident, although he heard about calls for help, words about the inability to leave the car on his own and the driver was bleeding.

By his inaction, the driver left the victims in a helpless and life-threatening state; his actions can be qualified under Art. 125 of the Criminal Code of the Russian Federation.

A crime is considered committed with indirect intent if the person:

• is aware of the social danger of his actions (inaction),
• anticipates the possibility of their occurrence,
• does not want to, but consciously allows these consequences or is indifferent to them.

An example of indirect intent. Two old acquaintances drink alcohol at one of their homes. Suddenly a quarrel arises over old grievances and one of them grabs a knife and inflicts 3 blows on the other, including two in the chest area. As a result, the citizen dies from a heart injury. The second citizen acted intentionally, stabbing with a knife, with the intent to cause harm, but he did not have the intent to cause death. Although the citizen had to accept the consequences of striking the chest - the heart, lungs, and important organs are located there, and if damaged, death can occur.

As a result, the citizen is liable under Part 1 of Article 105 of the Criminal Code of the Russian Federation as for premeditated murder.

In addition to the main division into direct and indirect, the theory of criminal law and emerging judicial practice provides for division according to several other parameters.

How does direct intent differ from indirect intent?

Each form of intent is characterized by intellectual and volitional aspects, in connection with which their fundamental differences arise.

The differences are clearly visible from the definitions; the main ones are awareness of the danger of one’s actions, the onset of consequences (intelligence) and the desire for the onset of consequences (will).

As you can see from the table, the difference is significant and easily determined.

In addition to the main division into direct and indirect, the theory of criminal law and emerging judicial practice provides for division according to several other parameters.

Having discussed the difference between direct and indirect intent, let’s move on to other types of intentional harm to health.

Depending on the time of occurrence of intent

Here we are talking about the time when the subject began to plot to commit a crime. After all, some crimes can be contemplated for years, others can be spontaneous.

• Premeditated .
  Example. The citizen plans in advance to attack the collectors. He studies their work schedule, route of movement, weapons, number of workers, draws up a plan and pattern of attack, and so on.
• Suddenly appeared .
  Example. An absolutely respectable citizen goes to a shopping center and makes the necessary purchases. Before his eyes, the cashier, who is carrying a bag of money to be deposited in the director’s safe, drops a stack of 5,000 ruble bills, leaving without noticing it. The citizen, having the opportunity to inform the cashier about the loss, does not do this and hides the money in his jacket pocket and leaves the store, thereby committing theft.
• Affected as a kind of something that arose suddenly. This is an intention that arose as a result of sudden strong emotional excitement. Usually happens as a result of immoral actions of the victim himself.
  Example. A husband, returning from a business trip, finds his wife with her lover, and without hesitation shoots them both with a hunting rifle. If the affective state of a citizen at the time of the murder is confirmed by a forensic psychiatric examination appointed and carried out, he will be subject to liability under Part 2 of Article 107 of the Criminal Code of the Russian Federation.

  Moreover, a very important point for this type of intent is the lack of thinking about one’s actions or a very short period of time between the actions of the subject of the crime.

  If, for example, the above-mentioned husband discovered his wife and lover, went out to smoke a cigarette and only then shot them, most likely he will be prosecuted under Article 105 of the Criminal Code as for an intentional crime with premeditated intent.

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Depending on the direction of intent

• Defined (specific), subdivided into simple And alternative.
  Example. A citizen shoots another in the stomach with a pistol - if he foresees the onset of dangerous consequences in the form of causing serious harm to health - this is simple intent. In the alternative, the citizen also allows the death of the victim.

  The actions of a citizen will also be qualified differently. Either as causing grievous bodily harm, or as attempted murder. Intent in these cases can only be direct.

• Vague (unspecified) .
  With this type, the citizen foresees the result of his criminal activity, but it is not specifically defined. Example. A citizen throws a grenade near a cafe, where many people are passing by at that time. He does not want to kill anyone in particular and allows for various types of harm to health and death. The qualification of a citizen's actions in this case will depend on the specific result (consequences). People died - murder, injured - causing harm to health of appropriate severity.

One of the main ideas of dividing intent into types is to determine the degree of social danger of the committed act and the person who committed it, including taking into account such additional characteristics as purpose and motive. The correctness of further qualification of crimes and the punishment for those who committed them depend on the correct definition of intent.

For example, a person who commits theft as a result of a sudden, provoking situation is likely less dangerous to society than a person who carefully planned and carried out an armed bank robbery.

Or a murder committed in an emotional state is still less dangerous than one prepared in advance out of revenge or self-interest.

How does the pre-investigation stage take place?

To initiate a case, the injured party must file an appropriate fraud claim. After this, the stage of confirming the signs of a crime through verification actions begins, which may include:

• interviewing witnesses;
• requesting documentation;
• validation studies;
• other events.

Important! The duration of pre-investigation actions depends on the volume of actions and can take up to 30 days.

The law allows the participation of a lawyer at the pre-investigation stage . Practice shows that in this case there is a high probability that the parties will reach an agreement before initiating a criminal case.

If circumstances go against the defendant, there is the possibility of compensation for damages to the plaintiff. This will lead to a loss of incentive for further proceedings, as well as bringing the perpetrator to criminal liability.

Liability for intentional injury to health

The Criminal Code of Russia establishes liability for intentionally in three sections.

• Article 115 – minor harm to health;
• Article 112 – average harm;
• Article 111 – causing grievous harm.

Punishment for these offenses is differentiated according to their severity:

• 115 of the Criminal Code of the Russian Federation - a crime of light gravity - is punishable by a fine of up to forty thousand, compulsory labor for up to 480 hours, correctional labor for up to 1 year, arrest for up to 4 months for 1 part.
  On the qualified grounds of the second part - punishable by compulsory labor for up to 360 hours, correctional labor for up to 1 year, restriction of freedom for up to two years, arrest for up to 6 months, imprisonment for up to 2 years.
• 112 of the Criminal Code of the Russian Federation - a crime of medium gravity - is punishable by the use of similar measures with an increase in sentence terms.
  The qualifying features of the second part of Article 112 are:
• 2 or more victims;

in relation to a person performing duties or performing a public duty;

• victim - a minor or a person in a helpless state, subjected to special cruelty, abuse or torture.
• committed by a group or an organized group of persons;
• hooligan urges;
• political, ideological, racial, national, religious hatred or enmity;
• use of weapons or objects used in such capacity.

As you can see, the article consists of 4 parts. The first three presuppose the presence of direct intent to cause harm, while the fourth part is a reckless offense - the actions set out in the first three parts, resulting in death due to negligence. And the object of part 4 is human life.

Proof

In order for a person who committed fraudulent actions to be punished, the fact of the crime must be proven.

In the case of Article 159, the plaintiff must prove the presence of malicious intent , that is, confirm the existence of deception or breach of trust.

Evidence of fraud will be:

• providing knowingly false information to the victim;
• concealment of information about the transaction;
• providing false information;
• committing actions that subsequently contributed to the commission of illegal actions, for example, misleading the victim.

Attention! The deception must be intentional. Otherwise, it is not classified under Article 159.

Evidence of breach of trust is:

1. lack of supporting documents and witnesses for the transfer of finances, property or securities;
2. falsification of documents allowing the parties to trust each other;
3. the fraudster has gained the victim’s trust through social status or financial means;
4. the fraudster received an advance payment, thereby confirming his readiness to fulfill his obligations.

When is evidence considered illegal?

The following cannot be attached to the case as evidence of guilt:

• information or data obtained illegally;
• guesses, opinions or assumptions;
• information obtained from sources not provided for by law;
• excerpts from television programs, newspaper and magazine clippings;
• information obtained from operational investigative activities of a covert nature.

In other words, if the plaintiff has such evidence as described above, he will most likely win the case; if he does not, you, the defendant, will win.

Features of the charges

Coming from the employer

In cases where an employer accuses an employee of fraud, there are specific features. When receiving claims from superiors, the employee must keep in mind that it is the employer who must prove his guilt in causing the damage. This must be confirmed by an inventory report, defective statement, commercial report or other reporting document.

If the procedure for conducting an inventory was violated, then the court, in most cases, does not recognize its results. This means that this will not constitute reliable evidence. In addition, the employer must prove the amount of damage. He will have to do this in court.

first be familiar with the documents confirming the suspicion of fraud . The employer is obliged to first request an explanation, and only then contact law enforcement agencies.

How much will the fine be reduced?

According to paragraph 3 of Art. 114 of the Tax Code of the Russian Federation, if there is at least one mitigating circumstance, the punishment is reduced by at least two times compared to the original amount. At the same time, the Plenum of the Supreme Arbitration Court of the Russian Federation, in paragraph 16 of Resolution No. 57 of July 30, 2013, indicated: in paragraph 3 of Art. 114 of the Tax Code of the Russian Federation establishes only a minimum limit for reducing sanctions. Based on the results of an assessment of the circumstances, the court has the right to reduce the amount of the penalty by more than half and even make it below the minimum amount (see letters from the Ministry of Finance of Russia No. 03-02-08/47 dated May 16, 2012 and No. 03-02-08/7 dated January 30 .2012).

However, neither the Federal Tax Service nor the court has the right to reduce the amount of sanctions to zero, since this is already an exemption from liability for the offense committed.

If there are mitigating facts, only the amount of penalties applied is reduced, but taxes and penalties cannot be reduced on these grounds.

Use the free guide from ConsultantPlus experts to correctly submit an application to the tax office and achieve a reduction in the fine.

Choosing a Qualified Lawyer

If you are accused of fraud, regardless of the degree of guilt, the first thing you need to think about is a good defense . A criminal lawyer must meet a number of criteria by which he must be selected. Tips on how to choose a criminal lawyer:

1. Cost of services. A good lawyer cannot be cheap, much less free. For the same reason, you should not contact specialists offering a “free consultation”.
2. Reputation. A lawyer must have experience and a reputation with clients. A good indicator would be a recommendation from a close friend or other authoritative person.
3. Education. The level of education of a criminal lawyer is an important indicator of his professionalism. In addition to higher education, he must be included in the register of the Bar Association and have the status of a lawyer. You can find out this via the Internet.
4. Practice. The lawyer's experience and the number of cases won will tell a lot about professionalism.
5. Specialization. The narrower it is, the better the lawyer understands the chosen topic. If you have been accused of fraud, you should contact a specialist who deals with similar criminal cases.
6. Appearance and manners. The person who will defend the defendant in court should be pleasant to talk to and not cause negative emotions.
7. Place of work. A good law firm is immediately visible. You shouldn’t trust a cramped office with a monthly rent on the outskirts of the city.
8. Problem assessment. A lawyer should not promise to win even the most disastrous case from the first seconds of meeting you. Trust must be derived from a reasonable approach. A good lawyer will name the realistic chances after studying the case materials.
9. Website on the Internet. Before contacting, you should study the website of the lawyer or his law office. A page on the Internet will give an initial idea of ​​​​the success of a specialist.
10. Personal qualities. A lawyer must inspire trust, otherwise the business relationship may not work out in vain.

Trial

The further stage is directly related to the filing of charges. It must be finalized by the time the investigation is completed. Then the case goes to court and the legal prairies begin. They take place in a standard manner: both parties gather in the courtroom and defend their side.

All interested parties gather in the courthouse to announce the verdict. The judge makes a final verdict, after which there are two options for the development of events:

1. the sentence comes into force, the accused begins to carry out the punishment;
2. The verdict is being appealed.

Appeal

An appeal in a criminal case allows you to appeal a court decision or an already passed sentence that has not yet entered into legal force. This opportunity is regulated by law and has its own characteristics.

An appeal can be filed by an accused or convicted person against whom a criminal case has been initiated under an article of fraud. In addition to him, this can be done by the acquitted person, the victim, the prosecutor, the prosecutor, as well as representatives of the parties. The remaining participants in the process have the right to appeal the court decision only to the extent that affects their rights.

Important! Relatives and witnesses of participants in the process cannot appeal the court decision.

You can appeal:

• final court ruling that has not yet entered into legal force;
• an interim decision made in a trial.

Where to submit?

You must appeal to the court that issued the sentence . This authority will refer the complaint to a second instance. According to Article 389.3 of the Code of Criminal Procedure of the Russian Federation, if a verdict for fraud was rendered in a magistrate’s court, then for further proceedings one should apply to the district court.

If the first instance was the district court, then the second instance will be either the supreme or regional court. The authority that accepted the appeal must notify the participants in the process of its receipt.

Deadlines

Article 389.4 of the Code of Criminal Procedure of the Russian Federation specifies the time frame within which a court decision can be appealed - 10 days from the date of the verdict. If the defendant is in custody, the calculation of the period will begin from the moment a copy of the decision is served on him.

If the deadline for consideration of the appeal has been missed, then the filed complaint remains without consideration . The opportunity to challenge a court decision remains in cases where it was not possible to appeal on time for a valid reason.

Attention! Before the consideration of the complaint begins, it can be withdrawn and the appeal proceedings can be terminated.

The law establishes time limits for considering an appeal in a criminal case. In the district court the complaint must be considered within 15 days, in the regional or regional court within 30 days, in the supreme court within 45 days.

What to include in a complaint?

The appeal must indicate:

• name of the court of second instance;
• details of the person filing the complaint;
• the date and number of the case, as well as the name of the court that made the decision that is being appealed;
• rights that were violated by this decision, as well as references to legislative norms;
• list of attached documents;
• signature of the person filing the complaint;
• date of filing.

Additional information may be attached to the case materials to prove the applicant’s position. These can be documents: certificates, receipts or certified testimony of witnesses. In addition, you will need to attach an explanatory statement answering the question of why this data was not provided to the court during the initial consideration of the case.

You can file an appeal either in person or on the official website of the court, as well as send a letter with notification. If the appeal is filed by a representative, then there must be a document confirming the authority of this person.

Investigative actions

The stage of investigative actions can be divided into components:

1. Investigative actions begin with repeated interrogation of the victim.
   The questions asked are the same as at the stage of initiating a case. The goal is to provide more detailed indications. Repeated interrogation helps fill in the gaps in existing information, as well as supplement the case with previously forgotten circumstances. In some cases, the plaintiff’s words can be confirmed by photographs, video or audio materials confirming his words.
2. Next, witness statements are collected. Just like the plaintiff’s testimony, they may be more detailed and contain new data than collected at the stage of pre-investigation actions.
3. At the initial stage of the investigation, an inspection of the scene of the incident, as well as the means and instruments of the crime, is carried out. This includes items of clothing and personal belongings of the suspect.
4. If the case contains a large number of documents confirming fraudulent actions, their search, seizure and careful study by the investigator will begin.
   Copies will be made of them and added to the materials of the criminal case. Some constituent documents are confiscated not only from the organization itself, but also from banking institutions, the registration chamber, etc. Particular attention is paid to documents confirming monetary or property transactions - contracts, receipts, promissory notes.
5. At this stage of the investigative actions, the main forensic examinations are carried out. These include: traceological, handwriting, author's, commodity, economic, technical and forensic examinations.
6. A seizure and search is carried out in order to discover means and instruments of crime, documents.
7. If the victim and suspect did not know each other before, an identification process takes place. It is carried out only when there is no doubt about a positive result. As a rule, the investigation is in no hurry at this stage.
8. Interrogation of a suspect is one of the most complex and time-consuming investigative actions. If the investigation has enough evidence against the defendant, there is no point in denying guilt; this will serve as another basis for suspicion of fraud.